Voorhees v. Preferred Mutual Insurance Co.3/20/1991
regard of a high degree of probability that severe emotional distress will follow, (2) that the conduct was extreme and outrageous, (3) that the actions of defendant were the cause of plaintiff's emotional distress, and (4) that the emotional distress that was sustained by plaintiff was severe and not idiosyncratic. See, e.g., 49 Prospect Street v. Sheva Gardens, 227 N.J. Super. at 474, 547 A.2d 1134. Reading Sisto's complaint liberally, we are convinced that the tort of outrage was alleged and that the mental anguish she claimed to suffer qualified as "bodily injury" under Voorhees' policy.
In a similar vein, negligent infliction of emotional distress has long been considered an independent cause of action in New Jersey. See, e.g., Strachen v. John F. Kennedy Memorial Hosp., 109 N.J. at 533-538, 538 A.2d 346; Portee v. Jaffee, 84 N.J. at 90, 417 A.2d 521; Falzone v. Busch, 45 N.J. at 561, 214 A.2d 12. Although our decisions pertaining to the subject have been aptly characterized as a "rather confusing patchwork," emotional distress has been "recognized as a source of recovery subject to rather rigid, formalistic requirements which evolved as a result of the traditional view of such claims as untrustworthy, subject to serious proof problems and bearing the potential for unjust application." Strachan v. John F. Kennedy Memorial Hosp., 209 N.J. Super. 300, 333-334, 507 A.2d 718 (App.Div.1986) (Long, J., dissenting), aff'd in part and rev'd in part 109 N.J. 523, 538 A.2d 346 (1988). As we noted earlier, we need not determine whether Sisto's claim of negligent infliction of emotional distress had any merit. We merely emphasize that Sisto's complaint alleged that tort, albeit in an oblique and ambiguous manner, and therefore Preferred was contractually obliged to defend Voorhees against the claim.
To recapitulate, our decisions have recognized that emotional distress, either negligently inflicted or resulting from outrageous conduct, constitutes direct and not parasitic damages. While perhaps mental anguish resulting from impairment of a "relational interest" falls beyond the insurer's coverage obligation, a point we need not decide, Sisto's claims of outrage and negligent infliction of emotional distress qualified as "bodily injury" under Voorhees' policy.
III.
We next consider Preferred's argument that Voorhees' conduct was deliberate and fell within the policy's exclusion for "intentional acts." We must review Preferred's contention in light of Sisto's allegation in her complaint that Voorhees acted "willfully, deliberately, recklessly and negligently."
We have alluded previously to the principle that in deciding whether a duty to defend exists, "the complaint should be laid alongside the policy and a determination made as to whether, if the allegations are sustained, the insurer will be required to pay the resulting judgment . . . ." Danek v. Hommer, 28 N.J. Super. at 77, 100 A.2d 198. This general principle is subject to several exceptions, however. When coverage, i.e., the duty to pay, depends upon a factual issue which may not be resolved by the trial of the third party's suit against the insured, the duty to defend may depend upon the actual facts and not upon the allegations in the complaint. Burd v. Sussex Mutual Insurance Co., 56 N.J. 383, 388,
|